EW YORK — If you wanted to feel the full force of the intellectual whirlpool that is American politics in 2018, the place to go on February 25 was the Village Underground, a nightclub beneath East 3rd Street, where Alan Dershowitz, the longtime Harvard Law professor and civil liberties lion, was debating the future of American democracy on the side of President Donald Trump.
Opposing him were a National Review writer and a former FBI agent, arguing that the special investigation into ties between Russia and Trump’s presidential campaign is well within the bounds of American law. Dershowitz, along with a conservative columnist for the Washington Examiner, was making the case that the Mueller investigation is dangerous to our entire system. In the room, which is normally a comedy club, it was impossible to shake the feeling that something was off. Two years ago, it would’ve seemed far more natural for the quartet to swap partners and switch sides.
On our way out, my wife and I were handed free copies of Dershowitz’s newest book, “Trumped Up: How Criminalization of Political Differences Endangers Democracy,” in which Dershowitz writes that special prosecutor Robert Mueller is subjecting Trump to “the legal equivalent of a colonoscopy.”
The woman behind us in line took her free book, turned to her husband and asked, “What happened to Alan Dershowitz?”
In certain circles—the legal academy, defense attorneys, Martha’s Vineyard—it is the question. Dershowitz, an iconic civil libertarian and criminal defense lawyer, who circulates between the liberal redoubts of Miami, New York and the Vineyard, has emerged in the past year as the most distinguished legal defender of Trump. He’s met Trump at Mar-a-Lago, and he dined with him at the White House the day after the FBI raid on Michael Cohen’s office. He’s a regular presence on TV, especially Fox News, where he’s a reliable voice on the president’s side against the investigation. In April, following the Cohen raid, Dershowitz appeared on “Hannity” nine times—including three days in a row. His message is clear: Mueller’s investigation is a witch hunt, and although he doesn’t think Trump should fire Mueller, the president would be within his rights to do it.
“People everywhere ask what happened to him,” said Nancy Gertner, a former federal judge and lecturer at Harvard Law School who has known Dershowitz for years. “I get that from everyone who knows I know him.”
Anyone under 30 could be forgiven for seeing Dershowitz as just another talking head on Trump TV, but to Gertner and her peers, that’s not even remotely who Dershowitz is. Gen Xers may know him as a celebrity lawyer, a member of O.J. Simpson’s defense team. Baby boomers know him for clearing the socialite Claus von Bulow of poisoning his wife in the 1980s. But Dershowitz had a 20-year career before that, during which he established himself as one of the most prominent and consistent defenders of civil liberties in America.
In 1963, as a law clerk, he drafted a crucial memo for Supreme Court Justice Arthur Goldberg that led to the death penalty being ruled unconstitutional. (The ruling was later reversed.) At Harvard, he sued the university’s all-male social clubs, and though he didn’t prevail, he was ahead of his time: Harvard recently severed its ties with the clubs. His legal scholarship articulates an expansive view of freedom of speech, freedom of religion and even animal rights.
Over this storied career, Dershowitz’s public persona has remained more or less unchanged: loud, provocative, brilliant and principled, if also relentlessly self-promoting. And, until recently, his positions have been tolerated, if not always embraced, by the legal academy and universally acknowledged for their moral seriousness.
About a year ago, after Mueller’s appointment on May 17, that started to change. Around then, Dershowitz—never one to overlook a celebrity being railroaded—started getting more TV airtime for his argument that a sitting president could not be guilty of obstruction of justice. The liberal intelligentsia recoiled. Dershowitz speaks openly of having been shunned by friends and condemned by relatives since then—even, he told me, at his family’s recent Passover Seder, where his grandson and nephew urged him to dial down his public defense of the president. He’s been harshly critiqued by former Harvard colleagues and within the small, tightly entwined community of civil libertarians. In late March, when legal analyst Jeffrey Toobin confronted him directly on Anderson Cooper 360—“I don’t know what’s going on with you … this is not who you used to be”—it felt like a moment of collective catharsis for liberals who see Trump as a threat to democracy.
Alan Dershowitz during a 2010 interview in Jerusalem.
Alan Dershowitz during a 2010 interview in Jerusalem. | Getty Images
But is Dershowitz really a turncoat? I spent two months interviewing leading civil libertarians and Dershowitz’s former colleagues, reading through his life’s work, and interviewing him twice. In one view, Dershowitz, at the end of his career, has finally crossed the line, defending a demagogue who rejects and threatens the very principles of liberty and fairness to which Dershowitz has dedicated his life. In another view, the people who’ve lost their way are the liberals and civil libertarians, blinded by their rage for Trump, who have dropped their principles in a moment of political threat and are taking out their anger on a man who has been their staunchest ally.
Maybe the question isn’t what happened to Alan Dershowitz.
Maybe it’s what happened to everyone else.
When Alan Dershowitz arrived at Yale Law School in the fall of 1959, there was no road map on how to be an American civil liberties lawyer, let alone an Alan Dershowitz. Even now it’s difficult to name anyone comparable. There have been other prominent lawyers who have represented controversial political causes and unpopular defendants—Clarence Darrow, William Kuntsler and Ramsey Clark are obvious candidates—but none carried on their careers with the publicness with which Dershowitz has conducted his life. “There isn’t another lawyer like Dershowitz,” civil rights attorney Ron Kuby told me. “Alan is sui generis and he knows it.”
At his Sutton Place apartment, overlooking the East River, Dershowitz explained to me that he had no role model. “I have no lawyer heroes,” he said. “Every lawyer I know has been deeply flawed in one way or another.” The closest comparison he could come up with was to Edward Bennett Williams, the Washington trial attorney who defended Jimmy Hoffa and Mafia boss Frank Costello—“except that Ed Bennett Williams is to the Catholic Church as Judaism is to me.”
Maybe the question isn’t what happened to Alan Dershowitz. Maybe it’s what happened to everyone else.
The decision to pursue his path in the law was organic. “I never decided to be a civil libertarian,” Dershowitz said. “I was born a civil libertarian. I was brought up a civil libertarian.” At 14, against the wishes of his parents, Dershowitz signed a communist-inspired petition opposing the death penalty for Ethel and Julius Rosenberg as a matter of principle, even though he personally detested communism. But he hadn’t heard the term “libertarian” until he took an ethics course at Brooklyn College with John Hospers, later the 1972 presidential candidate of the Libertarian Party, and even then Hospers’ libertarianism had an economic emphasis on free markets that didn’t resonate with Dershowitz’s left-leaning social politics.
Today, the idea of “civil libertarianism” still doesn’t quite have a defined spot on the intellectual and political map. The right to bear arms, the school-choice movement, desegregation, abortion rights and fetal rights—a set of issues wildly incompatible in the rest of public life—have all been defended under the mantle of “civil liberties.” Dershowitz’s conception of pure civil libertarianism resembles the “original position”—the thought experiment developed by the philosopher John Rawls, with whom Dershowitz was in a reading group at Harvard. Rawls, widely regarded as the most important political philosopher of the 20th century, suggested people should think about ethics as if they were operating behind a “veil of ignorance”—as if they were building a society without knowing what their race, gender and social standing would be, and were trying to develop rules that would work to everyone’s benefit. It’s an attempt to think about justice purely from the standpoint of fairness. In the contemporary context, the challenge might be to consider what you would think about, say, the Electoral College without knowing whether it would work to the benefit of your party or the opposition.
Rawls is ordinarily classified as a liberal philosopher, since “justice as fairness” requires equal rights, equal opportunity and, generally speaking, fair treatment of the powerless. But some of the neutral principles that would likely emerge from that approach—say, “every person should be entitled to the presumption of innocence and a vigorous legal defense”—benefit not only the powerless but also the rich and powerful, like, say, Donald Trump.
“I call it the shoe-on-the-other-foot test,” Dershowitz told me. Several days after our first talk, the FBI raided Michael Cohen’s offices, and he appeared on Fox News to say much the same thing. “You know, if this were the shoe on the other foot,” Dershowitz told Hannity, “if this were Hillary Clinton being investigated and they went into her lawyer’s office—the ACLU would be on every television station in America jumping up and down.”